SYSTAP Bigdata(R) Evaluation License Agreement
This Research License Agreement ("Agreement") is entered into by and between SYSTAP, LLC, a District of Columbia corporation with a place of business located at 4501 Tower Road, Greensboro NC 27410 ("SYSTAP") and you for SYSTAP's bigdata database and related documentation (collectively, "Software"). This Agreement is effective as of the date that you click on the "Accept" button below (the "Effective Date").
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. BY CLICKING "I AGREE" BELOW, YOU INDICATE THAT YOU ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT. SUCH ACCEPTANCE IS EITHER ON YOUR OWN BEHALF, OR ON BEHALF OF ANY CORPORATE ENTITY THAT EMPLOYS YOU OR WHICH YOU REPRESENT. AS USED IN THIS AGREEMENT, THE TERM "YOU" INCLUDES SUCH CORPORATE ENTITY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU, AND THAT BY CLICKING ON THE "I AGREE" BUTTON BELOW, YOU ARE PROVIDING YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK ON "I DO NOT ACCEPT" BELOW, AND YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
1.Grant of Limited Research License. SYSTAP grants to you, and you accept, the nonexclusive, nontransferable, nonsublicensable limited right and license to install and use internally the Software solely for evaluation, testing and research and development purposes. Use of the Software for commercial production or for any other use other than as explicitly permitted above, without acquiring a separate license from SYSTAP, is outside the scope of this license and is in violation of United States and international laws (including copyright laws). No license is granted to you for any other purpose.
2.No Training, Support and Maintenance. This Agreement does not include any current or future training, support or maintenance services from SYSTAP unless you and SYSTAP otherwise agree in writing and you pay to SYSTAP the applicable fees.
3.Restrictions. Notwithstanding anything to the contrary, the Software is licensed, not sold, to you by SYSTAP. You acknowledge that the Software contains trade secrets and other proprietary material, the ownership or licensed rights to which are owned by SYSTAP, its third party licensors or suppliers, and that such trade secrets and proprietary material are protected by law, including U.S. Copyright laws, patent laws and international treaty provisions. You agree that you obtain no ownership rights in the Software including any related intellectual property rights under the terms of this Agreement. SYSTAP makes no warranty or guarantee that the trade secret, patent, copyright or other intellectual property rights of SYSTAP or any other third party in the Software will be free from challenge or claims involving third parties. You may not assign, sublicense, distribute, pledge, sell, resell, lease, rent, or share your rights to the Software or any portion thereof, under this Agreement. You may not benchmark the Software, or share any benchmarking data with any other person without the prior written consent of SYSTAP. You may not alter any proprietary markings on the Software, including copyright, trademark, trade secret, and patent legends. The terms of this Agreement will apply to any updates, versions or modifications provided to you, at SYSTAP's discretion, that replace, modify and/or supplement the original Software unless such update contains a separate license.
4.Reservation of Rights. SYSTAP reserves all rights in and to the Software not expressly granted to you under this Agreement.
5.Feedback. You agree that, to the extent that you provide any suggestions, comments or feedback to SYSTAP regarding the Software (collectively, "Feedback"), such Feedback will be the sole property of SYSTAP, and you agree to assign and do hereby assign all Feedback to SYSTAP.
6.Term and Termination. This Agreement is effective until terminated by you or SYSTAP. You may terminate this Agreement at any time by destroying all copies of the Software, including all computer programs and related documentation, erasing any copies residing in any computer equipment, including laptop computers, desktop computers, terminals, servers, or networks and certifying to SYSTAP that you have complied with these requirements. SYSTAP can terminate this Agreement for any reason upon thirty (30) days prior written notice, or immediately if you do not comply with any terms or conditions of this Agreement. Upon any termination by SYSTAP, you agree to destroy the Software, erase all copies in your possession (including in the possession of any directors, officers, or employees, as applicable) or residing on computer equipment, including laptop computers, desktop computers, terminals, servers, or networks, and certifying to SYSTAP that you have complied with these requirements within fifteen (15) days following termination by SYSTAP. All provisions of this Agreement except for the license grant (Section 1) will survive termination and continue in full force and effect.
7.Disclaimer of Warranty. SYSTAP IS PROVIDING THE SOFTWARE ENTIRELY "AS IS," AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, NONINFRINGEMENT AND ADEQUACY FOR ANY PARTICULAR USE OR PRODUCTIVENESS. NOTHING IN THIS AGREEMENT WILL IMPLY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS WILL BE CORRECTED AT A CERTAIN TIME. YOU HEREBY ASSUME THE ENTIRE RISK ASSOCIATE WITH USE OF THE SOFTWARE, RESULTS OBTAINED, AND PERFORMANCE.
8.Limitation of Liability. IN NO EVENT SHALL SYSTAP HAVE ANY LIABILITY TO YOU UNDER THIS AGREEMENT FROM THE USE (OR ATTEMPTED USE) OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SYSTAP WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF PROFITS, LOSS OF USE, LOSS OF ANTICIPATED BENEFITS, LOST DATA, CORRUPTION AND THE LIKE), ARISING OUT OF ANY LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SYSTAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SYSTAP'S TOTAL LIABILITY TO YOU RELATING TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO SYSTAP FOR THE SOFTWARE, IF ANY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9.Exclusive Remedy. The provisions of Sections 7 and 8 of this Agreement state the exclusive liability of SYSTAP and your exclusive remedy, with respect to any claim of patent, copyright, or trade secret infringement.
10.Government Use. If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Software and the accompanying documentation are to be considered "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in 48 C.F.R. 12.1212 and 48 C.F.R. 227.7202.
11.Export Restrictions. You agree not to export or re-export, directly or indirectly, the Software in violation of the Export Administration Act of 1979, as amended, any successor legislation, the Export Administration Regulations issued by the U.S. Department of Commerce, bureau of Export Administration, or any other applicable laws and regulations governing exports in effect from time to time.
12.Confidentiality. The Software, any accompanying documentation, and the underlying ideas, algorithms, structure, organization, processes, and techniques embodied by the Software, the functionality and performance of the Software, and any Feedback are confidential and proprietary information of SYSTAP or its licensors (collectively, "Confidential Information"). You agree to keep strictly confidential and not disclose the Confidential Information to any third party. You may use the Confidential Information solely in exercise of the rights set forth in Section 1. Information will not be deemed Confidential Information hereunder if such information: (a) is known to you prior to receipt from SYSTAP; (b) becomes known to you from a source other than one having an obligation of confidentiality to SYSTAP; (c) is or becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by you; or (d) is independently developed by you without reference to the Confidential Information provided by SYSTAP.
13.Equitable Remedies. You recognize that money damages may not be an adequate remedy for any breach of any obligation hereunder by you involving intellectual property or use of the Software beyond the scope of the license granted by this Agreement, or unauthorized disclosure of any Confidential Information. You therefore agree that, in addition to any other remedies available hereunder by law or otherwise, SYSTAP may be entitled to seek injunctive relief against any such continued breach by you of such obligations.
14.Entire Agreement. This Agreement constitutes the entire agreement between the parties, and no representation, statement or understanding made by or between the parties that is not contained herein is valid or binding. This Agreement may not be amended except in writing and signed by both parties. In the event that the parties enter into a separate written agreement relating to the Software, that agreement will control with respect to any conflict between such agreement and this Agreement.
15.Severability. Should any term of this Agreement be declared void or unenforceable by a court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
16.Law to Govern; Venue. This Agreement shall be governed in all respects by the law of the North Carolina, without reference to choice of law provisions. Any claim, cause of action or proceeding arising from this Agreement or the conduct of the parties hereunder shall be commenced and maintained solely in a federal or state court of competent subject matter jurisdiction within the boundaries of the State of North Carolina, and you irrevocably consent to personal jurisdiction and venue in any such court.
17.Waiver. A waiver by either party of any term or condition of this Agreement or any breach thereof will not waive such term or condition or any subsequent breach thereof.
18.Non-transferability. This Agreement may not be assigned or otherwise transferred by you, by operation of law or otherwise, without the prior written consent of SYSTAP. SYSTAP may freely assign this Agreement.
19.Binding on Successors. This Agreement shall be binding upon you, your successors and approved assignees.